Lawyers For Guantanamo Detainees Not Allowed To Look At Important Leaked Evidence

from the this-is-stupid dept

In the business world, if you sign a non-disclosure agreement, it's well accepted that if the information covered in that agreement later becomes public through other means, you are no longer bound by the agreement. This makes sense. After all, why should anyone be forced to clam up about information that's already public. And, yet, for no good reason at all, it seems our government prefers a system where everyone is supposed to keep their head in the sand about public info. Witness the mind-numbingly bizarre claim that lawyers for Guantanamo detainees are not allowed to look at the documents that a bunch of newspapers released earlier this week (the documents allegedly came from Wikileaks, but apparently Wikileaks itself did not release them to the newspapers). Yes, these documents are all over the news and are widely available from multiple sources... yet the government has warned the lawyers not to look:

On Monday, hours after WikiLeaks, The New York Times and other news organizations began publishing the documents online, the Justice Department informed Guantanamo defense lawyers that the documents remained legally classified even after they were made public.

Because the lawyers have security clearances, they are obligated to treat the readily available files "in accordance with all relevant security precautions and safeguards" -- handling them, for example, only in secure government facilities, said the notice from the department's Court Security Office.

The NY Times, rightly, calls this "absurdist." I'd call it out right stupid. It's head-in-the-sandism. If the information is public, live with it. It's public. Pretending that public information is not public doesn't help anyone. It just makes it look like the government is in denial and not dealing with reality. Frankly, I'd much prefer a government that can deal with reality to one that tells everyone to cover their eyes and ears and pretend reality doesn't exist.

Of course, this is not the first time we've seen this. With just Wikileaks, we saw it a few months ago when parts of the federal government barred employees from looking at the site and its leaks, using the identical rationale. So, despite the fact that everyone else in the world could easily see those documents, the ones who it might impact the most have to pretend that the documents are not actually public.

It's government playing make believe.

It's also not unlike the ridiculous hoops the government made lawyers go through in the al-Haramain case, in which the government accidentally leaked a document proving that it had wiretapped without a warrant. And despite the fact that the document had been leaked, it was required that lawyers for al-Haramain pretend the documents were still secret, leading to an absolutely insane process by which the lawyers had to destroy all of the copies they had of this info, and could only refer to it obliquely from memory, with a Justice Department official watching over them, with the ability to force them to stop talking about certain aspects.

None of this makes any sense. Just like we have "security theater," this appears to be "classification theater." These documents are not classified any more. Period. Pretending they are is a charade that the government is putting on which everyone knows is a lie. Isn't it time we had our government stop pretending and start dealing with reality?

Speech is the new Cake

It's also not unlike the ridiculous hoops the government made lawyers go through in the al-Haramain case, in which the government accidentally leaked a document proving that it had wiretapped without a warrant. And despite the fact that the document had been leaked, it was required that lawyers for al-Haramain pretend the documents were still secret...

It does make sense. They've stopped worrying about keeping the information actually secret, and focused on keeping it out of the only venue in which it counts.

Even corporations get this

Every NDA I can remember signing has a clause that info isn't considered confidential if it's been publicly released through no fault of the recipient (i.e. if released by the owner or some third party). In other words, no need to worry about slamming the barn door.

But in a slight defense of the government side: this is leak data of unclear/unknown provenance, so could be disinformation. Without knowing its validity, it could hardly be presented as defense evidence (though the government's position gives this info a lot of credibility -- a kind of a "Streisand's corollary.")

Just shameful...

Doublethink Exercise Proceeding According to Plan

Up next, discussion of our war against the dispicible Eurasian forces with our wonderful Eastasia allies. The latest atrocities by the Eurasian scum have not gone unpunished, and noble Oceania and Eastasia forces have won great victories. Excuse me, I'm just being handed a note...

To recap, our glorious forces, along with our honourable allies the Eurasians, have soundly defeated the degenerate Eastasians in what is sure to be one of the final battles of the war!

The gov can suck it on this one...

Regardless of what the DOJ says about it, it is the lawyers' ethical obligation to read those documents in order to provide the best defense possible for their clients. A (corrupt) judge could exclude the contents of those documents from being used as evidence, but the DOJ should not have the right to bar them from reading them.

Of course, this whole subject is neck deep in the DOJ doing things they should not be doing, so...yeah.

Re: Doublethink Exercise Proceeding According to Plan

Even worse

They are not allowed to share this classified information with their clients -- even if its based on information that the government obtained from their clients. They can't even ask their clients if they really said the things the documents say they said.

Re: Re: Doublethink Exercise Proceeding According to Plan

Re: Even corporations get this

Unfortunately, the government has created a buearacracy (sp?) out of classified material. There are whole organizations whose sole purpose is to create classification policies.

When they have that much invested, people are not willing to face reality. Obviously, if the information is leaked elsewhere, there is no justification for it to remain classified. But the paperwork required to get a security clearance for the government explicitly states that any classified information the individual has access to remains classified until official declassified.

A Navy message was sent out telling everyone that we could not access Wikileaks using government computers on the unclassified network because it would be considered a "spill" (unauthorized release of classified material). Everyone laughed, but it isn't worth losing your security clearance and facing prosecution to violate a government NDA.

Re: Re: Re: Doublethink Exercise Proceeding According to Plan

Conspiracy To Pervert The Course OF Justice

Isn't this a clear case of a conspiracy to pervert the course of justice? In every jurisdiction, willful destruction of evidence is illegal and attracts substantial penalties for any person who engages in it. The documents are clearly evidence in a court case. So anybody, including any bureaucrat, faces personal liability and possibly a long jail sentence, if they engage in that pattern of behavior. Why have not the perps been charged?

incorrect title

I think the title of NY Times article, and consequently yours, is incorrect. The lawyers have security clearance. They can bring their copy of the NY Times into a secure government facility and read it there. They must leave the paper there, of course, before leaving. This may be absurd but it is different than saying the lawyers have to pretend Wikileaks doesn't exist.
If a particular leak from Wikileaks is fabricated then it isn't classified. The lawyers should be able to use the Wikileaks article to get complete or further information from the government. The classification restriction isn't tying their hands in defending their client. This is in contrast to the al-Haramain case, which was truly absurd and completely injust.

Re: Not comspiracy to pervert justice

I like "comspiracy theories." But as much as I like them, you can't really re-classify a document once it's out in the open. You can claim it's still classified and that no one should look at it, but you cannot reasonably expect everyone to comply.

If the general public has knowledge of it, it would seem pretty ignorant to claim that people personally involved in the case should just avert their eyes until a judgment is rendered.

Re: incorrect title

For example, because the government considers the documents classified, and
counsel holds a “secret” security clearance, he is concerned that if he views the
documents online, the government might revoke his clearance. Losing his clearance will
disable him from continuing to represent his current or future detainee clients and
jeopardize his ability to obtain further clearances. Counsel is concerned that the
government may even prosecute him. To avoid any potential sanctions, undersigned
counsel errs on the side of extreme caution and refrains from viewing the documents.

To the best of counsel’s
knowledge, the Secure Facility contains no secure computer onto which the Wikileaks
documents can be downloaded. Moreover, counsel is confident that the Justice
Department will not ferry the documents to the Secure Facility for viewing and use by
counsel. Even if the leaked documents were made available for viewing and use by
counsel at the Secure Facility, counsel located far from the Facility – some thousands of
miles away – would have to journey to the Facility to view and use them.

Re: Re: incorrect title

If I was a lawyer with secure clearance I would play the absurd security rules in this way. If you have someone download a NY Times article for you, put it on a thumbdrive and take it to the secure government security and read it there. This wouldn't violate the security handling rules because you don't know the newspaper article is classified until you read it. Newspaper articles are generally not considered classified so, absurd as it seems, you have played by the rules. I think the lawyers are whining about the rules because it is horribly inconvenient and incredibly stupid. I don't think the rules actually prevent them from ever viewing Wikileaks documents.
As far as having to travel to a secure facility that is far away, surely those lawyers have to do this on occasion. Suppose, for a moment, that the lawyers became aware of one of these documents but that Wikileaks never received or released it. The lawyer would surely make the effort to travel to a secure facility to ask about and view that document. The part I am not sure about is, if knowing about a document allows them to ask for it and view, not only that document, but related ones that pertain to their clients case.

Winning

It's not about secrecy, it's about winning the case. The IRS has a policy of not recognizing precedent. Sure they've lost thousands of cases over specific clauses in the tax code, but if you're audited, they'll say "prove it in court."

There is no "head in the sand" here - they are entirely aware they're using the law to obfuscate facts and deny the accused their basic rights.

Re: Re: incorrect title

"To the best of counsel’s knowledge, the Secure Facility contains no secure computer onto which the Wikileaks
documents can be downloaded."

This makes sense because, presumably, the computer at the secure facility is not connected to the internet. However, if a document is classified, it means the U.S. has its own copy somewhere, apart, from a Wikileaks release. Again, what I am not completely sure about is if mere knowledge of a classified document, including hearsay that it involves your client, is enough to force the government to allow access to the lawyer.
Another aspect of this is that any Wikileaks document is not absolutely verified as being a legitimate and unaltered document from the government. It would be always best for the lawyer to read an original document supplied by the government.
A final observation. Don't the rules of discovery, even in a case with classified evidence, require the government to supply the lawyer with all documents pertaining to his client? If that is the case, why weren't these documents provided before Wikileaks released them?